Appellate Court Prohibits Impeachment of Defendant by Evidence of an Unspecified Prior Conviction.

State v. Utter, Jr., Minn.Ct.App., 9/15/2009. 

 

9/11/2011 Update:  The Minnesota Supreme Court overruled this opinion, State v. Hill.    Here’s the original post if you still want to read it.

Mr. Utter, Jr. spent just shy of two years chatting up L.S. about his affair with L.S.’s wife.  L.S. eventually got tired of it so he got himself a restraining order.  It didn’t help much as the calls kept coming.  A month of so after getting the restraining order, Mr. Utter, Jr., called L.S. yet again, which prompted the state to charge him with violating a harassment restraining order.

At trial, the state said that if Mr. Utter, Jr. testified it would seek to impeach him with a previous conviction of violating an order for protection.  The trial court more or less punted the request, ruling that the state could impeach Mr. Utter, Jr. by telling the jury that he had a felony conviction of a certain date.  Mr. Utter, Jr. testified anyway.

In making its ruling the trial court didn’t go through the Jones factors litany,  State v. Jones, 271 N.W.2d 534 (Minn. 1978), which are:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant‟s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the crime to impeach), (4) the importance of defendant‟s prior testimony, and (5) the centrality of the credibility issue.

It turns out that whether evidence of an unspecified prior conviction is admissible for impeachment purposes hasn’t come up here.  Michigan won’t have it.  Kentucky and Wisconsin, among others, think it’s fine.  South Dakota, along with a few other states, leaves it to the trial court’s discretion.

Minnesota joins ranks with the minority view, which rejects a “mere fact” rule that allows the use of an unspecified prior conviction.  Otherwise:

to allow the admission of unspecified prior convictions would render meaningless our long line of cases emphasizing the importance of admitting only those convictions that assist the fact finder in measuring a witness‟s credibility and veracity

The error is also prejudicial, resulting in a remand for a new trial.  The appellate court noted that the trial court exacerbated its error by giving the jury a Spreigl instruction, instead of an impeachment instruction.

Biographical Information Obtained in Warrantless Raid by ICE Agents is Suppressed Under Fourth Amendment Exclusionary Rule

State v. Maldonado-Arreaga, Minn.Ct.App., 9/15/2009.  At 5:30 in the morning, immigration officers burst into Ms. Maldonado-Arreaga’s house.  They did not have permission.  They did not have a warrant.  There was no emergency.  They did have guns. Without benefit of a Miranda warning, Ms. Maldonado-Arreaga told the officers her name, address, date of birth, country of origin, employer, and that she had used an alias.  (Oh, did I mention that the immigration officers made Ms. Maldonado-Arreaga drive them around in her car to look for her adult son?  They did.)

The immigration officers recorded all this information on one of their forms, then gave a copy of the form to the Willmar police.  The Willmar police, in turn, used the form to discover that Ms. Maldonado-Arreaga had used the alias to obtain a driver’s license, to apply for her job, to obtain a social security card, and to record exemptions on her W-4 form.  The state charged her with various counts of aggravated forgery and identity theft. 

Ms. Maldonado-Arreaga moved to suppress the information contained on the immigration form, the information obtained from her employer, and the information obtained from the driver’s license office.  The trial court believed that the warrantless raid and detention, and the non-Mirandized interrogation – all of which produced the information on the immigration form – were unconstitutional, but that because most of the information was biographical there was no Fifth Amendment violation in admitting it.

The trial court relied upon three so called “routine booking question” opinions:  State v. Widdell, 258 N.W.2d 795, 797 (Minn. 1977); State v. Link, 289 N.W.2d 102 (Minn. 1979); and State v. Hale, 453 N.W.2d 704 (Minn. 1990).  Each of these cases involved booking questions asked of a suspect at a police station following a lawful detention, the only value of which was clerical.  Here, the questions to Ms. Maldonado-Arreaga were asked at a time when the immigration police had her chained – well, handcuffed – to her bed frame as her nursing baby lay sleeping at he side, and were intended to uncover evidence of crime: her entry status into the country.  The appellate court said that this implicates the Fourth Amendment and its exclusionary rule, not the Fifth Amendment.  Of all things, the appellate court relied upon an Eighth Circuit opinion, United States v. Guevara-Martinez, 262 F.3d 751 (8th Cir. 2001) to conclude that the exclusionary rule applies to the collection of biographical information from Ms. Maldonado-Arreaga.  The appellate court then concluded that the information on the immigration form, and the information that the Willmar police obtained on the basis of that form, must be suppressed as the fruits of the illegal raid and detention, the conduct of which the appellate court described as “flagrant and egregious”.  The appellate court concluded its Opinion with this blistering footnote:

Appellant does not claim that the detective was directly involved in the ICE raids. Yet, at oral argument, respondent conceded that members of the Willmar Police Department, including this detective, were in contact with ICE prior to the raid on appellant‟s residence, assisted ICE in coordinating unconstitutional raids on Willmar residents, and were present as “observers” during some of the raids. Clearly, the ICE raids did not occur in a vacuum, and the local police‟s participation—even if described as moderate, passive, or idle—is regrettable.

Requiring Those Entering Courtroom to Provide Identification Okay Under The Security Circumstances of the Case

State v. Cross, Minn.Ct.App., 9/8/2009.  Mr. Cross pled guilty to second degree murder.  There were bad feelings all around out in the gallery of the courtroom during the plea hearing, that spilled out into the hallway and streets.  The trial court decided that to discourage such behavior at the sentencing hearing those who entered the courtroom would have to identify themselves to deputies.  (Of course, if there were problems at the sentencing hearing the deputies would have a leg up in their investigation.)  Mr. Cross complained that this requirement violated his right to a public trial  even though no one who had wished to attend the sentencing hearing had been refused entry into the courtroom.  The trial court sentenced Mr. Cross in accordance with the plea agreement.

On appeal, Mr. Cross complained of this entrance drill.  The appellate court assumed without deciding that the Sixth Amendment right to a public trial applies at a sentencing hearing.  There was not, however, even a partial closure because the deputies did not exclude anyone who wanted to attend the sentencing hearing.  That one or more persons self excluded themselves in the face of the deputies and their identity inquires is also not a closure.  United States v. Shryock, 342 F.3d 948 (9th Cir. 2003). 

No Public Defender for “Extremely Dilatory” Defendant, Whose Inability to Retain Counsel Amounts to Forfeiture of Right to Counsel

State v. Jones, Minn.S.Ct., 9/10/2009.  A jury convicted Mr. Jones of offering a forged check, check forgery, and theft by swindle.  The facts are neither terribly interesting nor entertaining.  Rather, it’s the Sixth Amendment stuff and the 4-3 split that gets the headlines.

In February, May, and June, 2006, Mr. Jones appeared without counsel; at the first two appearances Mr. Jones applied for a public defender but the court said, no.  In June, Mr. Jones waived his right to counsel for the first appearance.  At the omnibus hearing two months later, he still did not have an attorney and none of the attorneys on the court’s reduced fee list would agree to represent him.  The court moved the case onto a trial docket.

At which time Mr. Jones objected to going forward without an attorney.  By this time he was working so the trial court figured that he would not qualify for a public defender; the trial court did give Mr. Jones on more month to retain counsel.  He still didn’t have an attorney.  He did have a $12.00 an hour job plus overtime; his live in girlfriend also had a job so between the two of them they made $4,500.00 a month.  Again, the trial court said he was not eligible for a public defender, saying that his income exceeded 125% of the federal poverty guidelines.  The trial court then extracted a begrudging verbal “waiver” of counsel from Mr. Jones and the trial commenced.  Here are the questions that the appellate court addressed.

First, was it okay for the trial court to consider the income of the live in girlfriend?  Such income “might be relevant to a defendant’s eligibility, especially when the defendant does not dispute including the income.”  Just how he was to know whether to dispute its inclusion isn’t mentioned. No real answer whether and when it’s okay to impute live in girlfriend’s income to defendant.

Second, can the trial court deny eligibility for a public defender solely because the applicant’s income exceeds 125% of the federal poverty guidelines?  Don’t know.  The appellate court concluded that this is not what the trial court did.

Third, did Mr. Jones make a valid waiver of his right to counsel?  Yes, but it’s the details that count.  Mr. Jones did not expressly waive his right to counsel; there is no written waiver and the colloquy was not adequate because it did not include inquiry about the nature of the charges, the advantages and disadvantages of self representation, and it did not even acknowledge Mr. Jones’s objections to proceeding without counsel.  That’s not the end of it, however.

There’s this waiver by conduct.  A defendant who engages in dilatory tactics after he’s been warned that he will lose his right to counsel if he persists loses his right to counsel.  The thing is, though, the same inquiry that is required for an express waiver is also required for a waiver by conduct, and that didn’t happen.

Does he get a lawyer?  No, because one can relinquish one’s right to counsel by forfeiture.  This is reserved for the defendant who engages in “extremely dilatory conduct.”  The great thing about forfeiture of the right to counsel is that none of that Faretta inquiry has to take place.

Now, one way to forfeit your right to counsel is to attack counsel in open court.  State v. Lehman,  749 N.W.2d 76 (Minn.Ct.App. 2008).  Mr. Jones didn’t have an attorney to attack but his failure in that regard amounts to a forfeiture of his right to counsel.  Simply put, the court gave him plenty of time to retain an attorney so that when he did not it appeared as if he were dragging his feet, and deliberately so at that; and each time he appeared in court (and was again denied a public defender) he was way too optimistic about the likelihood of getting an attorney to take his case.  He appeared eight times over the course of a year without counsel, almost always saying that he was planning to retain counsel.  He also knew of the disadvantages of self representation, saying to the trial court that he feared he would not get a fair trial without an attorney. 

Justice Page dissented, arguing that the trial court had not made an adequate record to explain the denials for a public defender.  Justices Meyer and Paul Anderson also dissented, but on the waiver question.  Justice Meyer did not think it was correct for the majority to equate attacking your attorney in open court with the inability to retain one; thus Mr. Jones’s conduct was not “extremely dilatory.” 

The Sixth Amendment has taken quite the beating in the Minnesota Courts this month, here, here, here, and here; and it’s only half over.  At least that great friend of the defendant, Justice Scalia, is still around.

Court Assumes Without Deciding That Police Have a Duty Similar to Rule 4.2 of Rules of Professional Responsibility; Any Violation, However, Was not Egregious under Clark Standard.

State v. Buckingham, Minn.S.Ct., 9/10/2009.  A jury convicted Mr. Buckingham of first degree premeditated murder and the trial court sentenced him to life without parole.  Police arrested Mr. Buckingham two days after the murder.  A couple of weeks later Mr. Buckingham called the police from jail, wanting to talk.  The officer recorded the Miranda warning and Mr. Buckingham’s request that the officer turn off the recorder.  The officer complied and Mr. Buckingham gave an incriminating statement.

On appeal, Mr. Buckingham complained of the failure to have recorded the entire interrogation, citing State v. Scales, 518 N.W.2d 587 (Minn. 1994).  During trial, however, Mr. Buckingham did not raise any factual disputes about the substance of the unrecorded statement.  Under State v. Inman, 692 N.W.2d 76 (Minn. 2005), this failure to have raised any factual disputes about the content of the statement makes any Scales violation unsubstantial.

Mr. Buckingham got in touch with the police at a time when he had counsel.  The officer tried unsuccessfully to contact Mr. Buckingham’s attorney, but the attorney’s voice mail box was always full; the officer did not notify the prosecutor of Mr. Buckingham’s contacts.  This omission arguably takes the interview out from under State v. Clark, 738 N.W.2d 316 (Minn. 2007), so Mr. Buckingham asked the appellate court to extend Clark to the police.  The appellate court rejected a request to impose an affirmative duty on the police:

to either (1) obtain explicit consent of counsel before interrogating the defendant; (2) notify the prosecutor that the defendant wants to talk, but is requesting his counsel be present; or (3) refrain from communicating with the defendant until the prosecutor and counsel have discussed the request and directed the most appropriate [course] of action.

The appellate court assumes without deciding that law enforcement owes a duty similar to prosecutors, but concludes that the behavior here was not “egregious” under Clark.  (Where a prosecutor violates Rule 4.2, the court takes a case by case approach to determine whether the conduct is so egregious as to compromise the fair administration of justice.)  For one thing, Clark had not been decided so even if the officer had called the prosecutor, that prosecutor may have believed in good faith that attempts to contact counsel satisfied Rule 4.2.

You Can Represent Yourself, But Not Back in Chambers

Holt v. State, Minn.S.Ct., 9/3/2009.  A jury convicted Mr. Holt of first degree premeditated murder, among other things, and the judge sentenced him to life in prison.  Nine years later, Mr. Holt filed a post conviction petition in which he raised seven issues.  Many were evidentiary and instructional rulings; the two interesting ones relate to the right of self representation.

In the middle of trial, Mr. Holt asked to represent himself, which the trial court granted.  A day or two later, one of the juror’s reported that twice someone had tried to break into his house.   The trial court held an in-chambers hearing to question the juror; Mr. Holt was not permitted to attend this hearing even though he was by then representing himself.  The juror stated that he thought that he could continue to be a fair juror so the trial court left him on the jury.  On appeal, Mr. Holt asked the appellate court to adopt an “implied bias” standard but the appellate court declined to do so.

During the colloquy on self representation, the trial court warned Mr. Holt that he would not be permitted to attend bench or in-chambers conferences, but that the substance of such conferences would be put on the record and stand by counsel could attend them.  With that in mind, the appellate court rejected Mr. Holt’s complaint that his Faretta rights had been violated by his exclusion from the in-chambers hearing with the juror.  That exclusion did not, the appellate court, concluded, hamper Mr. Holt’s control over his own case. 

Justices Page and Paul Anderson dissented, pointing out that there was no reason why the hearing with the juror could not have been held in the courtroom.  The trial court improperly forced Mr. Holt to chose between forgoing completely his constitutional right of self representation and accepting seemingly arbitrary limitations on his right to be present at all stages of his trial.

What’s That You Say? A Lawyer? I Can’t Hear You!

State v. Chavarria-Cruz, Minn.Ct.App., 9/8/2009.  A grand jury indicted Mr. Chavarria-Cruz on charges of first degree premeditated murder, and first degree murder for the benefit of a gang.  Detective Hanson, the lead investigator, interrogated Mr. Chavarria-Cruz; he recorded the interrogation as he is required to do, using his police department’s recording equipment.  The Detective noticed that Mr. Chavarria-Cruz was difficult to understand because he was very soft spoken, often looked down when speaking, and had a pronounced accent.  The Detective apparently did nothing to remediate any of these deficiencies.

Thirty minutes into the interrogation, Mr. Chavarria-Cruz tells Detective Hanson “I think I need a lawyer.”  The recording equipment “heard” this statement; the transcriber had no apparent difficulty hearing it when typing the transcript.  Problem was, according to the detective, is that he didn’t hear it.  The trial court accepted this assertion, made a finding of fact that the detective didn’t hear the lawyer statement and then denied the motion to suppress everything that Mr. Chavarria-Cruz said after the lawyer statement.

At least for now, Edwards v. Arizona, 451 U.S. 477 (1981) establishes a bright line rule:  once an accused says that he wants to deal with the police only through counsel, police interrogation must cease until counsel has been made available, unless the accused himself initiates further communication.  (But see, State v. Clark, 738 N.W.2d 316 (Minn. 2007).  The appellate court took a statement out of context from Davis v. United States, 512 U.S. 452 (1994) that whether an accused actually invoked his right to counsel is an objective inquiry.  That’s true enough when the question -  as it was in Davis - is whether the request for counsel was equivocal or not, but it doesn’t provide a legal rationale for the trial court’s finding that the detective didn’t hear the statement.  Objectively, when parsing an equivocal request for counsel, the inquiry is whether that request may reasonably be construed as a request for counsel.  Here, there’s nothing equivocal about Mr. Chavarria-Cruz’s statement:  “I think I need a lawyer.”  The only question was whether to believe the detective.  That’s a different analysis all together.

"Don't ever tell anybody anything. If you do, you start missing everybody."
- J.D. Salinger, The Catcher in the Rye

And the purpose of Scales, was what?

A Witness Who Refuses to Testify Except to Volunteer That Defendant is Innocent Allows Introduction of Prior Inconsistent Statements; a Coroner Who Did Not Perform Autopsy May Testify to its Results, at Least For Now.

State v. Bobo, Minn.S.Ct., 7/30/2009.  James Roberts and Reginald Nichols were waiting for a friend to finish up work at Stand Up Frank’s, a bar in Minneapolis.  As they waited, a truck or SUV drove past them, made a U-turn and returned.  As the SUV drove past the two men a second time someone in the SUV opened fire, wounding Mr. Nichols and killing Mr. Roberts.  The state eventually charged Mr. Bobo with the shooting and homicide, in no small part on the basis of information from a less than reliable snitch, one Sam James.  Mr. James gave statements both to the police and to a grand jury that implicated Mr. Bobo in the shooting and homicide.

Come trial time, however, and Mr. James would not testify other than to offer, unsolicited, the opinion that Mr. Bobo was innocent; the trial court held him in contempt.  The state alleged, unsuccessfully, that Mr. Bobo had intimidated Mr. James out of testifying by, among other things, packing the court room with fellow gang members.  That being the case, the state wanted to introduce Mr. James’ prior statements to the police and to the grand jury.  The trial court denied this request, so the state then asked to close the court room during James’ testimony.  The trial court agreed but Mr. James persisted in not testifying.  Exasperated, the trial court then permitted the state to introduce some of James’ prior statements, although they didn’t really seem to hurt Mr. Bobo.  Nonetheless, Mr. Bobo’s counsel then cross examined Mr. James, who launched into this tirade that everything he claimed he knew about the charges had come from the police and that he had lied to the grand jury.  Bingo, the trial court then let the state introduce wholesale James’ prior statements.

In this combined direct appeal and post conviction appeal, Mr. Bobo argued, among other things, that his trial counsel had been ineffective by deciding to cross examine Mr. James.  The appellate court avoids this claim by saying that the trial court was wrong to have excluded James’ prior testimony after he first hit the stand and proclaimed that Mr. Bobo was innocent.  The trial court should have admitted the prior statements as prior inconsistent statements. 

Mr. Bobo also complained about the closing of the courtroom.  The trial court had evidence before it that immediately before James first testified several gang members entered the courtroom; those same gang members left the courtroom immediately after his testimony.  The trial court also had evidence that James claimed it was the presence of these gang members that made him afraid to testify.  This satisfied the appellate court that the trial court had a valid basis to close the courtroom; the appellate court also rejected the claim that the court should have excluded only the alleged intimidators.

Finally, a medical examiner who did not perform the actual autopsy testified about the autopsy results; she did so without defense objection and so the appellate court applied a plain error standard.  The appellate court politely noted that a court of appeals opinion, State v. Johnson, 756 N.W.2d 883 (Minn.Ct.App. 2008), rev. denied, (Minn. 12/23/2008), had held that admitting an autopsy report by a medical examiner who was not testifying was plain error.  This opinion, however, came after Mr. Bobo’s trial so any error in his trial could not be “plain.”  The appellate court did not mention last term’s U.S. Supreme Court Opinion, Melendez-Diaz v. Massachusetts, which held that to avoid a Crawford violation the state must produce the chemist who tested the drugs in a drug prosecution and could not just introduce the lab report.  But see, Briscoe v. Virginia, cert. granted, 6/29/2009, which asks the question whether allowing the defense to call the chemist after the state introduces the lab report satisfies Crawford.

Felony Stalking Statute is Not Unconstitutional

State v. Stockwell, Minn.Ct.App., 8/11/2009.  On September 12, 2006, Ms. Stockwell rode M.H.’s bumper for several blocks on a four lane road in Rochester.  The two women did not know each other.  When M.H. pulled into her workplace parking lot, Ms. Stockwell followed her, then shouted at her about Islamic terrorism, about M.H.’s Islamic beliefs and about feeling like killing her.  M.S. is a Muslim woman who was wearing a headscarf at the time.  A jury convicted Ms. Stockwell of felony stalking.  On appeal, Ms. Stockwell argued that the felony stalking statute is overbroad in violation of the First Amendment, both on its face and as applied; and that the statute is unconstitutionally vague.  The appellate court rejects these arguments.

One who intentionally harasses another by stalking that  person, with knowledge or reason to know that this would cause the victim to feel frightened (among other feelings) and causes this reaction is guilty of felony stalking if the actions are undertaken because of a person’s religion.  The appellate court rejects Ms. Stockwell’s facial challenge for these reasons:

Because the statutory provision is specific as to the forms of conduct proscribed, because it requires that the actor knows her conduct will cause fear and causes that reaction, and because it is subject to a limiting construction, we conclude that the degree of overbreadth is not sufficiently substantial to require a holding that the statute is unconstitutional on its face.

The appellate court also rejects an “as applied” challenge, concluding that her bumper to bumper driving conduct did not convey a particularized message that might be deserving of First Amendment protection.  Lastly, Ms. Stockwell suggested, unsuccessfully, that the statute made any tailgating a stalking crime and thus the statute was void for vagueness.  The appellate court again points to the other requirements of the statute in rejecting this argument.

One Count of Interference With Privacy Okay For Each Person Captured on Hidden Camera

State v. Sopko, Minn.Ct.App., 8/11/2009.  Mr. Sopko installed a video camera in an air vent in a women’s college locker room.  He tested the camera by recording himself, then pointed it at the shower area.  Someone found the camera fairly quickly – the same day – but not before the camera captured Mr. Sopko and seven women in the locker room.  The state charged Mr. Sopko with seven counts of interference with privacy, in violation of Minn.Stat. 609.746, subd. 1(d):

A person is guilty of a gross misdemeanor who:
(1) surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events through the window or other aperture of a sleeping room in a hotel, as defined in section 327.70, subdivision 3, a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

Mr. Sopko thought that the statute’s focus was the installation of the camera for the statutory naughty purpose; because he installed only one camera he could be charged with just one count.  Not so.  The appellate court relied upon an Alaskan Opinion that had reached a similar result, Knutsen v. State, 101 P.3d 1065 (Alaska Ct.App. 2004).  The appellate court also said that the objective of the statue was not just to prevent the installation of the camera but to protect an individual’s privacy.

Peek a boo.

Even An Assumed Discovery Violation Requires Actual Prejudice to Obtain a New Trial

State v. Jackson, Minn.S.Ct., 8/6/2009.  Someone shot Markey, a Bloods gang member.  Mr. Jackson and his crew believed that one of three gangs – the Bogus Boys, the 20s or the 10s – had done it, so they went looking for them.  In the ensuing melee Mr. Jackson shot and wounded T.K., and he shot and killed Gennaro Knox.  Neither shooting victim was affiliated with any gang.

This was Mr. Jackson’s second trial; the first ended in a mistrial when the jury could not reach a verdict.  In the run up to the first trial, the state had filed a certificate to withhold Rule 9 disclosures for ten witnesses.  The state did provide information that these witnesses had given to police but it withheld identifying information about who they were and where they could be found.  The criminal rules allow this to occur:

The information relative to the witnesses and persons described in Rules 9.01, subd. 1(1), (2) shall not be subject to disclosure if the prosecuting attorney files a written certificate with the trial court that to do so may endanger the integrity of a continuing investigation or subject such witnesses or persons or others to physical harm or coercion, provided, however, that non-disclosure under this rule shall not extend beyond the time the witnesses or persons are sworn to testify at trial.

Seven of those witnesses testified at the first trial.  Mr. Jackson argued in the run up to the second trial that these seven witnesses had been “sworn to testify at trial” and so he was entitled to all un-redacted copies of all Rule 9 materials.  When Mr. Jackson made this pitch to the trial court to get the un-redacted reports in between the two trials, the trial court denied the request for production of the materials.

The appellate court assumed that the state had violated a discovery order; only Justice Page said that the rule entitled Mr. Jackson to the materials in between the two trials.  The appellate court, however, said that Mr. Jackson had to show prejudice from the alleged violation, which he did not do. 

Mr. Jackson also complained of four items of evidence that the trial court allowed the state to introduce to prove that he committed these crimes for the benefit of a gang.  One was a printed web page that depicted Mr. Jackson and his girlfriend, both wearing red, the color that other witnesses said was affiliated with member of Mr. Jackson’s gang.  The appellate court questioned whether the state had presented a proper foundation for the introduction of the web page, suggesting that someone from the website who had knowledge of the website content needed to testify to authenticate it.  Audi AG v. Shokan Coachworks, Inc., 592 F. Supp. 2d 246, 277-78 (N.D.N.Y. 2008).  Even so, Mr. Jackson could not show that the introduction of the web page substantially influenced the jury’s decision.